Constitutional Law

The Trump Amendments To The Constitution

Could we see the passage of Constitutional amendments which will try to stitch the country together again after this time of divisiveness?

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(Photo by Evan Vucci-Pool/Getty Images)

The Civil War Amendments stitched the country back together after the rift.  The Thirteenth Amendment to the Constitution abolished slavery; the Fourteenth guaranteed all citizens equal protection under the laws; the Fifteenth prohibited states from disenfranchising people on account of race.

I’m thinking about the Trump Amendments.

First, there’s the election, of course. On the one hand, Donald Trump may surprise us all for a second time. Trump may be reading the zeitgeist perfectly: Black Lives Matter may be a symbol of hate; the majority of Americans may support the display of the Confederate flag; the silent majority may crave a law and order candidate. If that’s true, then Trump will again surprise the pollsters in November, and we’ll see what the second term brings.

On the other hand, Trump may be wrong. He may be misreading the zeitgeist entirely, and America may have moved to the left in a way that Trump has not. If that’s true, then January will bring not only President Joe Biden, but also a continued Democratic majority in the House and a small Democratic majority in the Senate. What then?

Am I wrong to think that we may see the passage of the Trump Amendments, which will try to stitch the country together again after this time of divisiveness?

The 28th Amendment, the first of the Trump Amendments, will restrict the presidential powers of pardon and commutation. This amendment easily makes its way through Congress: The Democrats remain livid about the Roger Stone commutation; they vote for the amendment in a heartbeat. The Republicans don’t object, either: After all, there’s now a Democrat in office, so it doesn’t offend a sitting Republican president to restrict presidential powers. And the few Republicans who remain in Congress were both quietly offended by Trump’s use of the power of commutation and chastened by the voters.

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The 29th Amendment causes the Equal Rights Amendment to be ratified.  There’s no reason to wait for litigation to settle that issue. Whatever Americans believed in 1972, when the Senate first approved the ERA, Americans today overwhelmingly support guaranteeing women equal rights.  Trump’s sexism energized suburban women; politicians would naturally seek to capitalize on the moment. (The effort to garner public support for this amendment might involve a public relations campaign: “Grab ‘em by the Amendment!”)

The 30th Amendment deals with LGBT rights. There’s now a Constitutional right to same-sex marriage. In Bostock, the Supreme Court held that the Civil Rights Act applies to the LGBT community. Maybe it’s time to declare that the gay community, like the female community, has equal rights. Or maybe progressives will cleverly merge the 29th and 30th Amendments, so that politicians will be able to deny gay rights only by simultaneously denying women’s rights. That would be a hard vote to cast, and stranger political tricks have been played.

I’m less certain about the 31st Amendment — the one that eliminates the Electoral College by providing for the direct election of the president. The Electoral College subverted the popular vote only three times before the year 2000, but it then awarded the presidency to the loser of the popular vote twice in 16 years. Democrats would naturally be ready to abolish the Electoral College; Democrats suffered at its hands in 2000 and 2016. Republicans, conversely, might oppose this amendment. Perhaps Congress will solve this riddle by eliminating the Electoral College only 50 years in the future, thus achieving the desired result while making it less certain what political party, in what form, will benefit from the change.

How about the 32nd Amendment, to fix the Merrick Garland issue? This amendment would provide that, if the president nominates someone to the Supreme Court, does not withdraw the nomination, and the Senate does not vote on the nomination, then the Supreme Court vacancy is filled within a set number of days.  (We’d have to think carefully about this amendment, because it could be used to subvert the public good. If, in the future, an evil president and evil majority leader wanted to put Attila the Hun on the Supreme Court, then the president could nominate Attila, the majority leader could avoid having a vote, and the Hun would be seated. That’s a real problem, unless you’re convinced that we never elect people who put their personal and political ambitions ahead of the public good.)

Trump has certainly divided America, but things were worse at Shiloh and Antietam and Gettysburg. If the Civil War Amendments could unify us in the 19th century, then the Trump Amendments could unify us in the 21st.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected].

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